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Court of AppealDismissedCivil Appeal No. 96 of 2011

Maqsooda Begum Sroya v Sunmatt Limited [2017] KECA 390 (KLR)

Court of Appeal of Kenya
28 July 2017
4,073 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed an injury victim's bid for more damages, confirming Kshs 1 million was adequate and future medical costs must be pleaded as special damages.

What this practically means

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Executive summary

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The appellant, Maqsooda Begum Sroya (since deceased and prosecuted by her husband as legal representative), sued Sunmatt Limited for injuries sustained in a fall at the respondent's Ukay Centre shopping mall in Westlands, Nairobi. Liability was settled by consent at 60:40 in her favour and special damages were also compromised by consent at Kshs. 1,377,361.60. The High Court (Musinga J) awarded general damages of Kshs. 1,000,000 plus special damages, entering judgment of Kshs. 1,426,417 after contribution, but found a break in the chain of causation regarding a later re-fracture of the same femur and refused to award the Kshs. 790,217 revision-surgery expense. The appellant appealed on quantum only, contending that the general damages award was too low, that the surgery expense should have been added as general damages, and that the judge erred in faulting the deceased for not testifying. The Court of Appeal, in a single judgment of the court, held that the uncontroverted medical evidence of Dr. Modi established that the re-fracture occurred at the same site and was proximately caused by the original injury, so the deceased did not need to testify personally. However, it held that the future medical expense was essentially special damages that had to be pleaded and proved, and having compromised special damages by consent the deceased could not vary the consent order. It further found, comparing comparable awards, that the Kshs. 1,000,000 award was if anything generous. The appeal was dismissed with no orders as to costs.

Key legal issues

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01

Causation of the re-fracture and the burden of proof where the plaintiff does not testify

Holding

The trial court erred in finding a break in the chain of causation; the uncontroverted evidence of Dr. Modi that the re-fracture occurred at the same site and was proximately caused by the original injury was sufficient, and the deceased did not have to testify personally.

Reasoning

Section 107(1) of the Evidence Act places the burden on the party asserting a fact, but that burden is discharged by calling evidence, which need not be the plaintiff's own testimony. Dr. Modi repeatedly stated that the re-fracture was at the same site as the original fracture and was connected to it. The original injury had made the bone delicate given the deceased's age. The court therefore held the second injury was directly linked to the first, which was largely attributable to the respondent's negligence.

p. 5
02

Characterisation of the Kshs. 790,217 revision-surgery expense

Holding

Although the expense was proximately caused by the original injury, it was a future medical expense that must be pleaded and proved as special damages; having compromised special damages by consent, the deceased could not have it awarded as general damages.

Reasoning

The court accepted proximate cause between the second and first injuries but noted the law on future medication: the need for future medical care is itself special damages and must be pleaded and proved. The plaint did plead further special damages, but parties had by consent settled special damages at Kshs. 1,377,361.60. Asking the trial court to add the sum as general damages amounted to varying the consent order, a course not open to the deceased. The trial judge's treatment of the claim was therefore without fault.

p. 6
03

Adequacy of the award of Kshs. 1,000,000 for pain, suffering and loss of amenities

Holding

The award was neither inordinately low nor an entirely erroneous estimate; comparison with comparable injuries and awards showed it was if anything generous.

Reasoning

The purpose of the head of damages is to compensate physical and mental distress before trial and in future. The court reviewed comparable awards: Edward Katana (Kshs. 2,000,000 for more serious injuries), Mary Pamela Oyioma (Kshs. 900,000), Florence Njoki Mwangi (Kshs. 700,000) and Boniface Njiru (Kshs. 1,000,000). Against these, the Kshs. 1,000,000 award for a comminuted femur fracture, three operations, 2 cm limb shortening and 20% permanent disability was within range and did not warrant appellate interference.

p. 6

Legal principles established

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  • An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence in a material respect.
  • A plaintiff need not testify personally; his case may be proved through other competent witnesses or legal argument, so long as counsel is present to prosecute the suit.
  • A claim for future medical expenses must be pleaded and proved as it is essentially a special damage claim, even though the award may be made under the rubric of general damages.
  • A party cannot, through submissions, vary the express terms of a consent order on special damages; where damages have been compromised by consent, the court cannot award an amount inconsistent with it.
  • Where a further injury occurs at the same site as the original injury and uncontroverted medical opinion attributes the re-fracture to the original injury, the plaintiff discharges the burden of proving causation without testifying personally.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No orders as to costs
On appeal from
High Court of Kenya at Nairobi
HCCC No. 305 of 2008
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (appeal from the judgment and decree of the High Court); not expressly cited in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Maqsooda Begum Sroya v Sunmatt Limited [2017] KECA 390 (KLR)", Case Analysis (2017). Civil Appeal No. 96 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/390/eng@2017-07-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.